Friday, August 7, 2009

A trial by a Jury or a Judge?

In Salman Rushdie's Midnight Children there is a whole chapter dedicated to the scandal of Commander Sabarmati. The commander's wife Lila was involved in a romantic affair with one Homi Catrack, an unscrupulous womanizer. So when our hero Saleem breaks the news of the affairs to the chivalrous Commander , he devices an elaborate act to catch the couple red handed.

So this sounds like a good hindi movie plot? But unfortunately the events described above are based on real life. In our real story however there are some subtle changes that the Commander is a young Parsi gentleman who could have easily risen to teh top ranks of the Navy. His wife was a British national in India. The villan of course is Prem Ahuja a Sindhi business man. Commander Kawas M Nanavati did murder his British wife Slyvia 's paramour Prem Ahuja at point blank range after both of them were caught red handed.

So why are we so much bothered about a scandal of the Bombay of the sixties ? Exactly fifty years ago this case transformed the way our judicial system work. This was the case wherein the Bombay High Court declared that trial by jury is not suitable for Indian setting. At the trial court the jury overwhelmingly influenced by the stature of Commander's 'chivalrous action' ruled 8-1 not guilty of premeditated murder. Instead charged him culpable homicide with a two year prison term.

Fifty years later, it is time we revisit the issue of trial by jury again. A jury is a representative sample of the society at large. In all criminal proceedings the accused has the inherent right to be adjudicated by the society for his crimes. In the current dispensation it is the individual justices who adjudicate and decided on the extent of guilt.An unbiased jury is a rough representation of society's collective values and conscience. Hence they are less vulnerable to personal prejudices and inclinations of individuals. Also trial by jury can also reduce the burden on over worked judges.

But trial by jury also has its own disadvantages. In the US there are frequent appeals on the composition of the jury. In the Rodney King case, an all-white jury exonerated the LAPD of any wrong doing in death of the black individual. In this case the collective integrity of the jury was called into question.

There are inherent disadvantages in judges deciding on the quantum of punishment as well. In a recent case of a murder of a person, by henchmen of the owner a popular South Indian restaurant chain, the trial court judge passed a 10 year RI imprisonment with a whopping compensation of 55 lacs to the victim's wife!!! (considering his restaurant empire across the world, he could have paid the fine with ease). Then the a two judge bench of the Madras High court stepped in and reduced the fine to Rs. 30,000 (from 55 lacs !!) with a double life imprisonment( two 14 years RI each). So in the trial court the judge saw the practical ameliorative measure as cash compensation with min imprisonment. (considering his age and political clout). But the High court judge strictly by the books and awarded prison terms accordingly. (unfortunately the prescribed monetary fines in our law books is yet to catch up with current rate of inflation !!!). Now that the lady would get a pittance for her struggles, the case went to the Supreme Court and the owner is on bail . (well that's the way our judiciary works)

Before I conclude, Kawas Nanvati was eventually pardoned by then Governor of Bombay in 1962, thanks to pressure exerted by the Parsi club. He eventually left India and settled in Canada. (with his wife Sylvia and family ironically !!))


Vishnuvardhanan Vijayakumar said...

Nice one Shanker...

Shankar said...

machan thanks a lot...i guess you are the only one who read my blog :-)))) thanks for the encourgement